M. Moore v. Tangipahoa Parish School Board

Case: 16-30025 Document: 00513785724 Page: 1 Date Filed: 12/06/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 16-30025 December 6, 2016

Lyle W. Cayce

Clerk

M. C. MOORE. as father and next friend to minors Joyce Marie Moore, Jerry

Moore, and Thelma Louise Moore,

Plaintiff

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

Defendant - Appellant

v.

DONALD C. MASSEY, Court Appointed Compliance Officer, Tangipahoa

Parish School Board,

Movant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:

In this decades-old school desegregation case, Defendant Tangipahoa

Parish School Board (the Board) appeals the district court’s order doubling the

compensation of Donald Massey, the part-time Court Compliance Officer

(CCO) tasked with monitoring the integration efforts of the Tangipahoa Parish

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No. 16-30025

School System. Massey, in addition to arguing that we should affirm on the

merits, has also moved to dismiss the appeal alleging that we lack jurisdiction.

We conclude that we have jurisdiction and affirm.

I

This desegregation case was filed in 1965. In 1967, the district court

entered a comprehensive order establishing certain student assignment and

facilities requirements aimed at assisting the school district in achieving

unitary school system status. Since then the district court has exercised its

jurisdiction over this matter and has issued numerous additional orders aimed

at reaching this goal. As relevant here, in 2008, the district court created the

current CCO position, a part-time monitor tasked with ensuring that the

parties comply with the court’s orders. As set forth by the district court, the

CCO

shall review and assure that the school district implements the

provisions of this Order, collaboratively work with and provide

assistance to the Chief Desegregation Implementation Officer,

offer suggestions to the school district as to possible methods or

procedures which might be implemented to further enhance

desegregation aims, and prepare an annual report to the parties

and the court as to the progress of the school district’s

implementation of each of the provisions of this Order.

The district court appointed Massey to this position in August 2014; at the time

the position’s monthly salary was $4,000.

In 2015, Massey asked the Board for a raise but the Board denied his

request. Massey then filed a motion with the district court seeking

compensation at an hourly rate. The Board and the plaintiffs jointly opposed

the motion. The district court granted the motion, but rather than imposing

an hourly rate as Massey had requested, the court increased his monthly

salary to $8,000 per month. The Board appealed.

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II

We must first address whether we have jurisdiction to hear this appeal.

The Board argues that jurisdiction lies pursuant to 28 U.S.C. § 1292(a)(1) or

alternatively under the collateral order doctrine. Because we conclude that we

have jurisdiction under § 1292(a)(1), we decline to consider whether we would

also have jurisdiction under the collateral order doctrine.

Typically, appellate jurisdiction is limited to “final decisions of the

district courts.” 28 U.S.C. § 1291. That is, decisions “by which a district court

disassociates itself from a case.” Swint v. Chambers County Comm’n, 514 U.S.

35, 42 (1995). But under 28 U.S.C. § 1292(a)(1), we also have jurisdiction over

appeals from “[i]nterlocutory orders of the district courts . . . granting,

continuing, modifying, refusing or dissolving injunctions.” “A district court

‘grant[s]’ an injunction when an action it takes is ‘directed to a party,

enforceable by contempt, and designed to accord or protect some or all of the

substantive relief sought in the complaint in more than a temporary fashion.’”

In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015) (quoting Police Ass’n

of New Orleans Through Cannatella v. City of New Orleans, 100 F.3d 1159,

1166 (5th Cir. 1996)) (alteration in original); see also Integrity Collision Ctr. v.

City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (order directing city to

including towing company on the non-consent tow list was an injunction

subject to enforcement by the district court and thus appealable under Section

1292(a)(1)). “A district court ‘modif[ies]’ an injunction when it ‘changes the

obligations imposed by the injunction.’” In re Deepwater Horizon, 793 F.3d at

491 (quoting CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE § 3924.2 (3d ed. 2014)) (alteration in original). “This court

takes a practical view of what constitutes a modification, ‘look[ing] beyond the

terms used by the parties and the district court to the substance of the action.’”

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Id. (quoting In re Seabulk Offshore Ltd., 158 F.3d 897, 899 (5th Cir. 1998))

(alteration in original).

In the school desegregation context, the courts of appeals routinely

exercise appellate jurisdiction under § 1292(a)(1) over orders like the one at

issue in this case. “[E]quitable decrees that impose a continuing supervisory

function on the court commonly . . . contemplate the subsequent issuance of

specific implementing injunctions” and “[e]ach such injunction is appealable

regardless of finality.” People Who Care v. Rockford Bd. of Educ., Sch. Dist.

No. 205, 171 F.3d 1083, 1086 (7th Cir. 1999). In People Who Care, a case

challenging a budget order entered by a magistrate judge for the purpose of

funding school integration, the Seventh Circuit observed that the initial

desegregation decree was essentially “an injunction generator” allowing the

district court to exercise its ongoing supervisory function to ensure the school

district achieved and maintained unitary status. Id. This is analogous to

what is happening in this case. The initial decree issued by the district court

in 1967 was “an injunction generator,” and the district court’s order that the

Board increase Massey’s salary is a subsequent injunction that flows directly

from that original order, and is thus “appealable regardless of finality.” See id.

We thus conclude that this court has jurisdiction. 1

1 We note that there is tension among our precedents interpreting and applying

§ 1292(a)(1). Although this court takes a “practical view” as to what constitutes a

modification of an injunction, we have also said that when an order is not expressly an

injunction or a modification of an injunction but has the “practical effect” thereof, the order

must have “serious, potentially irreparable consequences” in order for jurisdiction to lie. See,

e.g., Sherri A.D. v. Kirby, 975 F.2d 193, 203 & n.14 (5th Cir. 1992) (“orders which explicitly

grant or deny injunctive relief are immediately appealable as of right,” but “orders

which . . . have the practical effect of denying an injunction, but do not do so in explicit terms,

are immediately appealable if the order threatens ‘serious, perhaps irreparable

consequences’ and can be effectively challenged only by an immediate appeal”). Deepwater

Horizon, however, suggests that an appellant must always show “serious, perhaps

irreparable consequences” to confer jurisdiction under § 1292(a). 793 F.3d at 492. But see

Brumfield v. La. State Bd. of Educ., 806 F.3d 289, 297 (5th Cir. 2015) (interpreting an order

as an injunction even though it did not explicitly state it was for injunctive relief, but not

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III

With respect to the merits, the Board argues that the district court

abused its discretion by increasing Massey’s salary from $4,000 per month to

$8,000 per month. The Board also argues that the district court erred in

referring to the CCO position as a “special master” under Federal Rule of Civil

Procedure 53 and that even if it did not err in that regard, the district court

based its decision on unreliable and irrelevant information.

We review the district court’s determination of Massey’s salary for an

abuse of discretion. See Samnorwood Indep. Sch. Dist. v. Tex. Educ. Agency,

533 F.3d 258, 267 (5th Cir. 2008) (citing Swann v. Charlotte–Mecklenburg Bd.

of Educ., 402 U.S. 1 (1971)). “A district court abuses its discretion if it bases

its decision on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” United States v. Texas, 601 F.3d 354, 362 (5th

Cir. 2010) (quoting Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005))

(internal quotation marks omitted).

The fact that the district court referred to Massey as a special master is

a distinction without a difference. Although the CCO position was created

pursuant to the court’s inherent authority in fashioning equitable remedies,

see Ex parte Peterson, 253 U.S. 300, 312 (1920), the Board points to no authority

to support its argument that the court’s inherent power differs in any

meaningful way from its authority pursuant to Rule 53 to appoint special

masters, see Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982) (“Beyond

the provisions of [Rule 53] for appointing and making references to Masters, a

Federal District Court has the inherent power to supply itself with this

instrument for the administration of justice when deemed by it essential.”

discussing the consequences before determining that the court had jurisdiction). Because

jurisdiction would be proper under any of these interpretations of § 1292(a)(1), we decline to

resolve these tensions.

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(quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956))

(internal quotation marks and citations omitted)), amended in part, vacated in

part, 688 F.2d 266 (5th Cir. 1982). Therefore, the district court’s

characterization of Massey as a special master was not an abuse of discretion.

Nor did the district court abuse its discretion by relying on Rule 53 in

calculating the increase in Massey’s salary. Under Rule 53(g)(1), “the court

may set a new basis and terms [for the master’s compensation] after giving

notice and opportunity to be heard.” The fixing of fees and costs for a special

master rests within the court’s discretion. Gary W. v. State of La., 601 F.2d

240, 245 (5th Cir. 1979). After giving both sides an opportunity to brief this

issue, the district court issued its order raising Massey’s salary.

The district court applied the “Hart formula,” derived from Hart v.

Community School Board of Brooklyn, New York School District. No. 21, 383

F. Supp. 699 (E.D.N.Y. 1974), in determining Massey’s compensation. In Hart,

the court concluded that “a reasonable fee would be based upon about half that

obtainable by private attorneys in commercial matters.” Id. at 767; see also

United States v. Yonkers Bd. of Educ., 108 F.R.D. 199, 202 (S.D.N.Y. 1985)

(noting that courts have emphasized the public nature of such work in setting

reasonable fees well below those charged in commercial legal matters).

Applying this as a baseline, the court determined that $140 per hour was an

appropriate hourly rate for the CCO position. The court then multiplied this

number by the average number of hours that Massey worked per month as

CCO.

The Board does not dispute that the hourly rate the court calculated was

reasonable; rather the Board argues that the district court erred in accepting

that Massey worked seventy hours per month on average in performing his

duties as a CCO. First, the Board argues that the district court erred in relying

on a summary that Massey provided in calculating his salary. The Board

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argues that this summary only included the total number of hours worked and

descriptions of the tasks performed, but was not itemized and did not include

time entries. The Board offers no authority, nor have we found any, that

supports its argument that Massey was required to extensively document his

activities, or that he had to provide specific documentation in order to receive

a salary increase. We therefore conclude the court did not abuse its discretion

in relying on the information that Massey provided in calculating his salary.

Second, the Board argues that the district court improperly credited

Massey with time spent working as a CCO when many of the tasks that Massey

reported to have performed were outside the scope of his duties and

responsibilities as a CCO. Such reported activities included organizing and

moderating “community meetings” to discuss bullying and forming a blue

ribbon panel to discuss issues concerning “at-risk kids” in the school district.

The Board argues that these issues are beyond the scope of the district court’s

desegregation orders and therefore the district court should not have counted

those activities when calculating Massey’s compensation as CCO.

We cannot say that the district court’s decision was an abuse of

discretion. School integration is an enormously complex enterprise that

requires consideration of an enormous number of factors. Cf. Swann, 402 U.S.

at 27 n.10 (“There is no universal answer to complex problems of

desegregation; there is obviously no one plan that will do the job in every

case.”). Efforts to achieve unitary status are bound to have a far reaching

impact and unpredictable consequences across the school district. In this case,

the district court has issued orders related to student discipline and special

education programs. The Board’s interpretation of the CCO’s role in

overseeing the district’s integration efforts is far too narrow. The CCO’s

responsibilities—which include “offer[ing] suggestions to the school district as

to possible methods or procedures which might be implemented to further

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enhance desegregation aims”—are broadly defined and therefore it is

reasonable to allow him some flexibility in how he carries out his duties. The

district court has exercised its oversight over this case for many years and is

well-versed with regard to the details and progress of the integration efforts

and the role that the CCO plays. We therefore find that the district court did

not abuse its discretion when it took Massey’s reported activities into

consideration when it calculated his new salary.

IV

For the foregoing reasons, the district court’s decision is AFFIRMED.

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